California gay-marriage ban loses support

By Alison Vekshin, Bloomberg News

Published: March 25, 2013, 10:59 AM

SAN FRANCISCO — Two weeks after being sworn in as San Francisco mayor in 2004, Gavin Newsom found himself sitting in the the U.S. Capitol gallery watching then-President George W. Bush tell the nation that a constitutional change defining marriage as a union between a man and a woman might be needed.

"I decided to walk the halls and walk outside and call my chief of staff and said, 'We need to do something, we need to send some signal of opposition,"' Newsom, 45, now California's lieutenant governor, said in a March 21 interview describing his reaction. Bush used the issue in his campaign that year to help him win re-election to a second term.

The moment led to the California law banning gay weddings that comes before the Supreme Court on Tuesday. It spurred Newsom to direct San Francisco officials to begin issuing marriage licenses to same-sex couples. That move prompted court battles and culminated in Proposition 8, a 2008 state ballot measure passed by voters that bars such unions.

The nation's high court is set to consider same-sex marriage for the first time this week, weighing the California law and, the next day, the 1996 Defense of Marriage Act, which prevents the federal government from recognizing gay unions. The court will decide the cases by June.

Newsom and other supporters of same-sex marriage say the ballot measure that passed almost five years ago would fail if voters considered it today, since public opinion has shifted.

A Field Poll released last month showed that 61 percent of California voters approved of allowing same-sex couples to marry, while 32 percent opposed it. That compares with 51 percent in favor to 42 percent against in a 2008 Field poll.

"There is now majority support for allowing same-sex couples to marry across partisan, ideological, ethnic, age, marital status and the major geographies of the state," Mark DiCamillo and Mervin Field, of San Francisco-based Field Research Corp., said in a statement issued with the latest poll.

Registered Republicans and self-described conservatives are the only groups where majorities remain opposed, according to the Feb. 5-17 telephone survey of 834 registered California voters. The Supreme Court's ruling in the Proposition 8 case is important to 60 percent of those surveyed, the poll showed.

"There's been a shift in what people are willing to tell pollsters," Andrew Pugno, a Folsom, Calif.-based lawyer who wrote the ballot measure, said by telephone. "In the privacy of the ballot box, traditional marriage still enjoys support."

Same-sex marriage was favored by 53 percent to 41 percent against in a Jan. 15-22 telephone survey of 1,704 state residents by the nonpartisan Public Policy Institute of California in San Francisco.

"Since 2008, as the freedom to marry has become more common, the reality is the sky has not fallen and the predictions of gloom and doom simply have not come to pass," Sam Thoron, the former president of Parents, Families and Friends of Lesbians and Gays, said by telephone.

Thoron, a 73-year-old San Francisco resident, and his wife, Julia, were featured in a 2008 television commercial opposing Proposition 8. They also wrote the argument against the measure that was included in the ballot language, asking that their child, Liz, continue to have the right to marry.

"We believe that our lesbian daughter should be treated in every aspect of her life with the same respect and dignity that seems to flow so naturally to her two straight brothers," Thoron said. "We believe that she deserves exactly the same rights, privileges and obligations of full citizenship. And if she can't marry the love of her life, she is a second-class citizen."

Supporters argued that Proposition 8 merely restored the definition of marriage set by voters in 2000 when they passed an initiative that said only marriage between a man and a woman was valid in California. Backers said the 2008 measure would protect school children from being taught that "'same-sex marriage' is the same as traditional marriage," in promoting a yes vote.

"It helped parents understand that redefining marriage affected not only same-sex couples, but affected them in the raising of their children and the passing on of values in their own families because a redefinition of marriage would be reflected in the instruction in public schools," said Pugno, the Folsom lawyer. He is part of a legal team set to defend the law before the high court this week.

In Oakland, City Hall will fly a rainbow flag Tuesday and March 27 in support of same-sex couples, officials said in a March 19 statement.

"Our nation is undergoing a welcome and long-overdue sea change in its perception and treatment of people of all sexual orientations, and Oakland is proud to stand with those who fight for their equality," Mayor Jean Quan said in the statement.

Nationwide, political support has shifted in favor of same- sex marriage, backers say. President Barack Obama, a Democrat, became the first sitting president to support the practice last year. Former President Bill Clinton, a Democrat who signed the 1996 federal law at issue March 27, this month said the court should strike it down. He called it "incompatible" with the Constitution.

"Increasingly, politicians have been speaking out in favor of same-sex marriage," said Mark Baldassare, president of the California policy institute. "This is something that's noticed by voters. They look for cues to their parties, to their leaders."

In November, voters in four states weighed same-sex marriage propositions, with Maine becoming the first where the practice was made legal by a popular vote. In Maryland and Washington, laws allowing such unions were affirmed, and in Minnesota, a proposed constitutional amendment defining marriage as between a man and a woman was rejected at the polls.

"The ramifications of this decision will be felt beyond California," said Newsom, who had been invited to Bush's 2004 speech by Rep. Nancy Pelosi, a California Democrat and the party's House leader.

"It's very powerful in terms of the impact it will have," Newsom said. He said the court's ruling may affect "subsequent litigation in those 31 or so states with constitutional amendments that ban same-sex marriage."

In New Mexico, two same-sex couples last week sued for the right to marry after being denied licenses by the Bernalillo County Clerk's office in Albuquerque, the American Civil Liberties Union said. New Mexico doesn't have a law or constitutional provision blocking such marriages, according to the complaint.

San Francisco resident Jennifer Dawgert-Carlin, 48, married Sandee Henry, 59, in 2008, days before Proposition 8 passed. The two psychotherapists have been together 20 years and have two children.

"We rushed down after work because we knew that we had to get married right before the election," Dawgert-Carlin said in a telephone interview.

"I remember standing there in the rotunda of City Hall in the evening and the man who married us is saying these legally binding words that had been said to my parents, that had been said to my grandparents, that had been said to my siblings," Dawgert-Carlin said. "I felt profoundly moved having the governmental institution wiping away a lifetime of being marginalized, being harassed and being treated as a second-class citizen."

Public attitudes are shifting on same-sex marriage as gays become more familiar, Dawgert-Carlin said."They realize that we are tax-paying, minivan-driving people," she said. "We're just like everybody else."